Bomar v. Insurors Indem. & Ins. Co.
| Decision Date | 11 July 1951 |
| Docket Number | No. A-3135,A-3135 |
| Citation | 242 S.W.2d 160,150 Tex. 484 |
| Parties | BOMAR v. INSURORS INDEMNITY & INS. CO. |
| Court | Texas Supreme Court |
Chrestman, brundidge, Fountain, Elliott & Bateman, Dallas, for petitioner.
Strasburger, Price, Holland, Kelton & Miller and Royal H. Brin, Jr., Dallas, for respondent.
By a carefully designed and cleverly executed fraudulent pretext, inducing the belief that the purported purchaser of insured's automobile had made arrangements with a bank whereby a check given for the purchase price of the automobile would be paid when title cleared with the State Highway Department, one posing as James E. O'Boyle obtained possession of the insured's automobile, and a certificate of title to it, with intent to appropriate the property to his own use and benefit, and did so appropriate it.
The insured carried with appellee a 'comprehensive' policy of insurance, including 'Broad Form' of theft coverage, insuring against loss by theft, except 'loss due to conversion, embezzlement or secretion by any person in lawful possession of the automobile under a bailment lease, conditional sale, mortgage or other encumbrance.'
The facts are fully set out in the opinion of the Court of Civil Appeals found in 237 S.W.2d 441. That Court affirmed the judgment of the trial court denying to petitioner any recovery under the insurance policy issued to petitioner by respondent. By such action the Court of Civil Appeals, in its majority opinion, held the facts of this cause did not constitute 'theft', as defined by our statutes. The facts are undisputed in that only one witness testified. He was Mr. Wallace who had the car in his possession and delivered the car and the clear title certificate to O'Boyle, the party perpetrating the fraud.
Our statutes define theft by false pretext as follows: 'The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.' Art. 1413 Penal Code, Vernon's Annotated Penal Statutes.
The constituent elements of this crime are declared to be: (1) obtaining the property by means of a false pretext; (2) at the time the property is so obtained the accused had the intent to deprive the owner of the value thereof, and to appropriate it to his own use and benefit; and (3) pursuant to said intent said property was appropriated by the accused. King v. State, Tex.Cr.App., 213 S.W.2d 541 (1); Dixon v. State, Tex.Cr.App., 215 S.W.2d 181, and cases therein cited; 41 Tex.Jur., p. 68, 'Theft', Sec. 46; Annotations to Article 1413, Vernon's Penal Code, 1925, Vol. 3, 1st col., p. 170.
Respondent contends that the crime is that of swindling, and, therefore, does not come within the terms of the policy which covers theft only.
In the case of Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069, 1070, Madame Lovine had obtained possession of more than $50 from the prosecuting witness under the representation that for such sum she would show the prosecuting witness where some treasure was buried on lands in Travis County, Texas, in which accused advised the witness he had an interest. She could not deliver and was tried and convicted of theft. In affirming the case the Court of Criminal Appeals said: 'Any contention by appellant that the crime committed was swindling instead of theft by false pretext is against the uniform holdings of this court. In Ruling Case Law, Vol. 17, p. 13, many precedents are cited for the following proposition, among them many Texas cases: 'If a person with a preconceived design to appropriate property to his own use, obtains possession of it by means of fraud or trickery, the taking under such circumstances amounts to larceny, because in such cases the fraud vitiates the transaction, and the owner is still deemed to retain a constructive possession of the property, and the conversion of it is a sufficient trespass, or, as is sometimes said, the fraud or trick practiced on the owner is equivalent to a trespass.''
It is further claimed that since the title to the car and to the certificate passed to O'Boyle the offense could not be theft, but must be swindling. That distinction between the crimes of swindling and theft, although formerly recognized as being the dividing line between the two offenses, is no longer so recognized by the Court of Criminal Appeals.
In the case of Roe V. State, 140 Tex.Cr.R. 387, 144 S.W.2d 1104, 1108, it is said: .
Also it is said in the case of Johnson v. State, 144 Tex.Cr.R. 392, 162 S.W.2d 980, 982:
'The fallacy relative to the distinction between swindling and theft by false pretext being the delivery or not of title, has long since been departed from by this court in the following cases: De Blanc v. State, 118 Tex.Cr.R. 628, 37 S.W.2d 1024; White v. State, 123 Tex.Cr.R. 282, 58 S.W.2d 530; Contreras v. State, 118 Tex.Cr.R. 626, 39 S.W.2d 62; Sherman v. State, 124 Tex.Cr.R. 273, 62, S.W.2d 146; Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.2d 104; Haley v. State, 127 Tex.Cr.R. 177, 75 S.W.2d 272; Baldwin v. State, 132 Tex.Cr.R. 427, 104 S.W.2d 872; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069; New v. State 129 Tex.Cr.R. 16, 83 S.W.2d 668.
'In De Blanc v. State, supra, Judge...
To continue reading
Request your trial
-
Johnson v. Comm'r of Internal Revenue
...485, —-, 265 S.W. 911, 912 (1924). This distinction was subsequently abandoned by the Texas courts. See Bomar v. Insurors Indemnity & Ins. Co., 150 Tex. 484, 242 S.W.2d 160, 162 (1951). 5. Respondent also contends that under the former Texas Penal Code, which was in effect during 1973, Bagg......
-
Dare v. Jenkins (In re Jenkins)
...592-93 (Tex. Ct. App. 1886) ; Colbert v. State , 1 Tex. App. 314, 321 (Tex. Ct. App. 1876) ; see also Bomar v. Insurors Indem. & Ins. Co. , 150 Tex. 484, 486, 242 S.W.2d 160 (Tex. 1951) (discussing term as "false pretext"); Tomlinson v. Clem (In re Clem) , 583 B.R. 329, 383-84 & nn.239-40 (......
-
Hudiburg Chevrolet, Inc. v. Globe Indem. Co.
...an insurance policy, as it was in Policy B, is given the same meaning it has under the criminal law. See Bomar v. Insurors Indemnity & Ins. Co., 150 Tex. 484, 242 S.W.2d 160 (1951); Indemnity Co. of America v. Slade, 4 S.W.2d 649 (Tex.Civ.App,.1928, writ ref.). Even a true owner, who takes ......
-
Kroll v. Collins
...shipped to pasturage, but instead Collins promptly delivered them to the auction ring where they were sold. Bomar v. Insurors Indem. & Ins. Co., 150 Tex. 484, 242 S.W.2d 160; Castro Coop. Gin Co. v. Harrison, supra; Tanner v. Jckson, Tex.Civ.App., 246 S.W.2d 319. While we do not pitch our d......